Would the Founders approve?

1. Would the Founders approve?

2. Would the Founders allow flag-burning?

3. Would the Founders allow radical parties like this?

4. Would the Founders have allowed you to have weapons like this?

5. Would the Founders have approved of this woman having the job she does…or ANY job?

6. Would the Founders have approved of a military draft?

7. Would the Founders approve of this?

8. Would the Founders approve of this exercise of military power?

9. Would the Founders have approved of gay marriage? Or gay adoption?

10. Does it matter what the “Founders” might think?

11. How about a little test case? Suspicious that marijuana was being grown in Danny L. Kyllo’s home in a triplex, agents used a thermal imaging device to scan the triplex to determine if the amount of heat emanating from it was consistent with the high-intensity lamps typically used for indoor marijuana growth. The scan showed that Kyllo’s garage roof and a side wall were relatively hot compared to the rest of his home and substantially warmer than the neighboring units. Based in part on the thermal imaging, a Federal Judge issued a warrant to search Kyllo’s home, where the agents found marijuana growing. After Kyllo was indicted on a federal drug charge, he moved to suppress the evidence seized from his home and then entered a conditional guilty plea. The Ninth Circuit ultimately affirmed, upholding the thermal imaging on the ground that Kyllo had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home. Even if he had, ruled the court, there was no objectively reasonable expectation of privacy because the thermal imager did not expose any intimate details of Kyllo’s life, only amorphous hot spots on his home’s exterior.

12. Hmm… • Does Danny Kyllo have a reasonable expectation of privacy? • Was it violated? • Is the use of a thermal imagery device a “search?” And if so…do law enforcement personnel need a search warrant?

13. The Decision The Ninth Circuit Court of Appeals: • The use of thermal imagery is okay, because Kyllo had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home. • Even if he had, ruled the court, there was no objectively reasonable expectation of privacy because the thermal imager did not expose any intimate details of Kyllo’s life, only amorphous hot spots on his home’s exterior.

14. The Appeal • The Supreme Court ruled 5-4, and said….? • that the thermal imaging of Kyllo's home constituted a search. Since the police did not have a warrant when they used the device, which was not commonly available to the public, the search was presumptively unreasonable and therefore unconstitutional. • Justice Scalia (majority): a person has an expectation of privacy in the home and therefore, the government cannot conduct unreasonable searches, even with technology that does not enter the home. • Future technology can invade on one's right of privacy; so the opinion asserted that the difference between “off the wall” surveillance and “through the wall” surveillance was non-existent because both methods physically intruded upon the privacy of the home. Scalia created a “firm but also bright” line drawn by the Fourth Amendment at the “‘entrance to the house.” • Justice John Paul Stevens (dissent): the use of thermal imaging does not constitute a search, which requires a warrant, because any person could detect the heat emissions. He argued that this could be done by simply feeling that some areas in or around the house are warmer than others or observing that snow was melting more quickly on certain sections of the house.

15. WWFFD?